Yesterday [25 November 2002], President George W. Bush signed into law the Homeland Security Act of 2002 and named current Director of the Office of Homeland Security, former Pennsylvania Governor Tom Ridge, to be the first Secretary of the new Department of Homeland Security that is the principal creation of this act.

I applaud the creation of the new department per se. As earlier Commentaries on this site will show, I was harshly critical of the Bush Administration when it was not apparently in favor of just such a new department and even opined that it was "time to get serious" (implying that we were not at all serious about homeland security until we started putting together just such a new department) [Reference WHILE AMERICA SLEPT? or just another round of Political Backbiting?? -Ed]. I wish Mr. Ridge well in his new role (and I cannot, right now, believe he will not be confirmed by the U.S. Senate all that long after the 108th Congress is formally sworn come 7 January 2003) and truly, sincerely, hope that he will soon no longer be the mere "man behind the curtain" I once called him (in a comparison to the "great and terrible Oz" of the famous film version of The Wizard of Oz who proved to be somewhat less than "great" and not really all that "terrible"). My comment was not at all a reflection on Mr. Ridge himself, his character or his service to Our Nation; instead, it was more a comment on the relatively weak position Mr. Ridge has generally been in as Homeland Security Director- even with his personal and political friendship with the President (and one can only shudder at how much worse things might have been had Mr. Ridge's current Office not been filled by someone who had such a relationship with President Bush!).

So, in short, I applaud the new Department of Homeland Security and I equally applaud the choice of the man to be the new department's first Secretary. I want to assure Mr. Ridge or anyone on his staff- or, for that matter, anyone on the staff of the White House (though I have absolutely no idea whether or not anyone in such high places even reads my verbiage here on 'The Green Papers')- that I do not consider Mr. Ridge to be at all a 'clown' in the sense that I am using it as the title of this piece. The new Secretary will have a hard road to hoe ahead of him and he needs and deserves the support of all of us, at least at the start (we can all- as the free society we are- complain, should we wish to do so, about how he does things once he actually sets out doing them), as he now begins this difficult journey.

Rather, the 'clowns' are those (yes, some of these are in the White House-- but more than a few are in Congress and, as we now know post- 5 November, will be for the next two years at least) who did not take care of some fundamental weaknesses in the structure and mission of the new department- along with the implementation of this mission- in the course of drafting, debating and then passing this legislation. And, unless these weaknesses are well addressed, it is my opinion that we will not be all that much better off insofar as homeland security is concerned than we are just prior to the new department beginning its tasks early next year.

First of all, for those of you who have not had the time to peruse this rather ponderous (as, I suppose, it must be-- given the size and scope of the undertaking) piece of legislation , herewith the highlights (which I will not here pretend is at all comprehensive a summary of the act):

The new Department of Homeland Security (hereafter- in this Commentary- "DoHS") is made up of the following five "Directorates", with its own "Under Secretary for" each:

Information Analysis and Infrastructure Protection
Science and Technology
Border and Transportation Security
Emergency Preparedness and Response
Management

I'm not going to list every bureau and agency included in each "directorate", but will here only note the following major points regarding the organization of the new DoHS:

The Directorate of Science and Technology includes a new Homeland Security Advanced Research Projects Agency (a potentially controversial entity already because of talk of developing better and more effective means for- and methods of- gathering and using private information about individuals for homeland security purposes).

The Directorate of Border and Transportation Security includes the following: the very old (one of the earliest "bureaus" established by the Federal Government, in fact) Customs Service, the still very new Transportation Security Administration, a Bureau of Border Security (in effect, what was once the Border Patrol) and a Bureau of Citizenship and Immigration Services (in effect, what was once the Immigration and Naturalization Service).

The Federal Emergency Management Agency is now part of the DoHS's Directorate of Emergency Preparedness and Response; while the department's human resources apparatus as well as the section responsible for making sure that the new DoHS doesn't overly infringe on Civil Rights and Civil Liberties are in the Directorate of Management.

Both the Secret Service and the Coast Guard are placed within the new DoHS as "distinct entities" apart from the above Directorates.

There are also other parts of the bill re: government reorganization that are not part of the DoHS-- most notably, much of the Bureau of Alcohol, Tobacco and Firearms being transferred to the Department of Justice as the new Bureau of Alcohol, Tobacco, Firearms and Explosives (although the revenue enforcement elements of the old ATF will remain in the Treasury Department as part of the Tax and Trade Bureau).

There are at least three fundamental weaknesses (though, if I didn't want to keep this piece to a manageable length, I could almost certainly think of more that are not quite as glaring) in this new Homeland Security Act which I think are of paramount importance to have corrected once the 108th Congress convenes next January (though I have little hope- and I am certainly not so naive to believe- that these will, in fact, be corrected because I don't think all that many who will be serving in that institution in that new Congress see these as the weaknesses they so clearly are to me!).

Weakness # 1. Unnecessary separation from the National Security Council:

The Homeland Security Act creates a "National Homeland Security Council" in the White House, the core of which is to consist of the President, Vice President, the Secretary of Defense, the Attorney General and the Secretary of Homeland Security. While the new legislation permits "[s]uch other individuals as may be designated by the President" to sit in on this new NHSC and further states that "[t]he President may convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct", it does not mandate that the NHSC at all coordinate with the NSC.

To me, this is an essential weakness: what should have been done was to include the Secretary of Homeland Security on an enlarged National Security Council, rather than now having two separate councils (with a couple overlapping Cabinet officers)-- for I cannot believe that a single day will go by where what is being dealt with by the NSC will not also have at least some significant ramifications for that being discussed in the NHSC.

Weakness # 2. No direct control over federalized National Guard units deployed on home soil:

In the Constitution of the United States- among the powers granted to Congress in Article I, Section 8 of that document- are the following provisions:

The Congress shall have Power * * *
To provide for calling forth the Militia to execute the Laws of the Union, to suppress Insurrections and repel Invasions. [clause 15]
To provide for organizing, arming and disciplining the Militia, and for Governing such Part of them as may be employed in the Service of the United States… [first portion of clause 16]

The power of the President of the United States to "call out the militia" was first statutorily prescribed by Congress under the above provisions of an act of 28 February 1795 and this Federal statute was definitively declared constitutional by the U.S. Supreme Court in 1827 [Martin v. Mott, 12 Wheaton (25 U.S.) 19]. Nowadays, the organized Militia of the several States is generally known as the National Guard and a Presidential "calling out the militia" is now much better known as "federalizing the National Guard".

The President is, of course, the one designated as Commander in Chief of the Army and Navy of the United States at the very beginning of Article II, Section 2, clause 1 of the U.S. Constitution and, presumably, whenever the National Guard is- under (and only under!) his specific direction, obviously- called into the Service of the United States, things could be set up so that the National Guard units so federalized could function under any department of the Executive Branch: that is, there is nothing in the Constitution which requires that National Guard units in the employ of the Federal government always be under the control of the Department of Defense. It is solely the statutes found in Part I [Organization and General Military Powers] of Subtitle A [General Military Law] of Title 10 [ARMED FORCES] of the United States Code that place such units under the Secretary of Defense: meaning, Congress could have changed this by statute and chose not to.

Wouldn't it make much more sense to have set up a command (either specifically by statute or by authorizing, say, the new National Homeland Security Council- on which the Secretary of Defense will now sit, by the way!- to set up such a command structure) which would have a chain of command emanating from the President through the Secretary of Homeland Security to any units of the National Guard federalized for purposes of homeland security? Instead we still will have the Secretary of Homeland Security more or less begging on his knees that the Secretary of Defense deploy and then move about- as events warrant- such militia units, even though such deployment and movement will be primarily based on information being analyzed by the new DoHS itself… in other words, the DoHS can come up with- and suggest- a military response (either for protection/prevention or dealing with the aftermath of a terrorist attack) on home soil based on its own analysis of intelligence data but it cannot at all implement it- nor can it control this response once it has been implemented. This, to me, seems one of the two major and most glaring "Achilles heel"s of this whole setup!

Weakness # 3. No significant counterterrorist information/intelligence gathering apparatus of its own:

The other- and even more glaring- "Achilles heel" of the DoHS is at the other end of the "information-analysis-implementation" chain, however. The new Homeland Security Act states that, among the duties of the new Department's Directorate of Information Analysis and Infrastructure Protection, shall be the following: "To access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities, and to integrate such information in order to--

• (A) identify and assess the nature and scope of terrorist threats to the homeland;
• (B) detect and identify threats of terrorism against the United States; and
• (C) understand such threats in light of actual and potential vulnerabilities of the homeland."

The problem here is that this Directorate is, by and large, an information sifter, not at all an intelligence procurer. I have no problem at all with, for example, the Central Intelligence Agency remaining a separate agency (though- if I "ruled the world"- the CIA would have long ago been placed within the Department of State [since its primary intelligence role involves that related to the implementation of Foreign Policy; the Department of Defense, of course, has its own Defense Intelligence Agency], much as its- in many ways- domestic counterpart, the Federal Bureau of Investigation, is within the Department of Justice… I am not at all a "fan" of all that many federal agencies and administrations operating outside the Cabinet structure and my opinion always has been that, wherever practicable, a federal bureau or agency should have to answer to a Cabinet-level head of an executive department per se who himself is directly accountable to the President of the United States himself)-- but I cannot, for the life of me (and, should I myself ever be the victim of a terrorist attack, wouldn't my use of that phrase then be singularly ironic!), figure out why- other then reasons related to the abject stupidity of various and sundry bureaucratic "turf wars"- what is now the Counterterrorism unit of the FBI was not moved into the DoHS to function as the new department's primary information/intelligence gathering unit!

One of my good friends opined- early in the process of this Homeland Security Act working its way through Congress- that he did not much care for the name "Homeland Security" being applied to the new department (those of you reading this might well remember an earlier Commentary of my own where I myself preferred the name "Homeland Defense" [Reference WHILE AMERICA SLEPT? or just another round of Political Backbiting?? -Ed] for the new department [changing the current Defense Department to that of "(Overseas) Military Operations"]- this, of course, all being based on my argument [restated earlier in this Commentary] that federalized National Guard units deployed on home soil should be under the control of the new department]); I asked him what he himself would have preferred and he replied, "Department of Counterterrorism"- to which I rather sardonically retorted that one couldn't give the new department that particular name when Counterterrorism is apparently not going to be one of its duties (given that the main domestic information/intelligence gathering component remains the Counterterrorism unit of the FBI which itself would still be working outside the new department).

So what are we here left with?: a department that cannot so easily reach out and get information and intelligence related to homeland security on its own and which cannot implement and control all the resources necessary to then act on such information and intelligence as it deems important to its mission!… and which, in addition, has its Cabinet-level head participating in a White House council separate from the National Security Council!!…

and yet Congress and the White House still had the unmitigated gall to call this legislation the Homeland Security Act of 2002!!!